SZMBY v Minister for Immigration
[2010] FMCA 165
•16 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 165 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal has no general duty to enquire – lack of enquiry did not amount to a failure to discharge the Tribunal’s statutory duty of review – no breach of s.424A proved. |
| Migration Act 1958, ss.424, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZMBY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2411 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 March 2010 |
| Date of Last Submission: | 2 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr D. Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2411 of 2009
| SZMBY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was targeted by the authorities for being a member of an underground Catholic church, including by being issued warnings and by being arrested and detained.
The applicant claims to fear persecution in China because of his religion.
After his arrival in Australia on 31 July 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 27 August 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 18 February 2008 which was quashed by consent on
20 April 2009 because of inadequacies in the interpreter services provided at the first Tribunal hearing.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision
(Court Book (“CB”) pages 164 – 173). Relevant factual allegations are summarised below.
Protection visa application
In a written statement to the Minister’s department the applicant claimed that:
a)he was born in Fuqing City in Fujian Province in China;
b)he became a Catholic in early 2004 but was unwilling to participate in religious activities organised by the government;
c)he normally took part in religious activities at home or in the homes of other Catholics or the priest;
d)in June 2004 the police broke into his home during a religious gathering, noted down the names of all the people present and confiscated all their religious materials. The following week they were interviewed by the police and advised of the government’s policy towards underground Catholics, namely that if they were found on a second occasion to be practising they would be detained for forty-eights hours and fined and, if found again, they would be imprisoned. Thereafter, they kept their practice extremely secret and to a minimum; and
e)when the former Pope died in April 2005 he held a mourning ceremony at his home. The police raided the ceremony and accused them of practising their religion. The police wanted to take them to the station but they argued that they were only conducting a mourning ceremony. One of the officers at the scene then contacted his supervisor to report on what had happened and after a period all the officers left.
First Tribunal hearing
In a statement submitted to the Tribunal as first constituted the applicant claimed that:
a)he was beaten and detained for twenty-four hours in the incident of June 2004;
b)in the incident of April 2005, he was taken to the police station at night and detained for forty-eight hours during which time he was tortured and interrogated; and
c)he had the “most unforgettable experience” on 22 July 2007 when he was found by the police participating in church activities at a church member’s home. He was about to be arrested but managed to escape with the help of other church members. He left Fujian for Beijing that day and then left China.
The applicant also provided a statement from a Paster Chun of the Chengtou Church in China who confirmed, amongst other things, that the applicant had been baptised in March 2004. The applicant also provided a testimonial from a Ms Yun in Sydney who confirmed that the applicant regularly attended Mass at Flemington Catholic Church and had participated in all kinds of church activities.
At the first Tribunal hearing, on 31 October 2007, the applicant made the following additional claims:
a)his initial statement to the department failed to say that he had been detained twice in China because he had not told the whole story to the person who wrote the statement attached to his visa application and, since the applicant could not read English, he was not able to confirm that the details were correct;
b)he was on a “watch list” held by the authorities;
c)he read the Bible but could not recall everything in it; and
d)he is currently attending Catholic Mass and taking Communion every Sunday.
Second Tribunal hearing
At the second Tribunal hearing, held on 25 June 2009, the applicant made the following additional claims:
a)between 1997 and his departure from China to Australia, he had been living in Dacuo village;
b)he initially denied that he wrote on his visa application that he had moved to a new address in Gao Xiang in August 2006 but later stated that it was indeed correct information after having been shown the relevant section of the application form;
c)he first told the Tribunal that his wife and children were living with his parents in Dacuo village but later said that they were in fact living alone in Gao Xiang which was ten kilometres away;
d)they had moved to this new address because he and his wife were being persecuted in the village;
e)after the move to the new address the situation had been “all right” but then he decided to come to Australia in 2007 because on 29 July 2007, when Mass was being held at the new home, police came and tried to take him away;
f)he became interested in Christianity in 2004 and attended the Luke Church in Chengtou;
g)his wife was baptised in October 2004 in that church, he having been baptised there in March 2004;
h)in the new town his wife was involved with a church group associated with the Luke Church. She mainly participated in activities at home or in the homes of friends. Sometimes she attended Mass at Luke Church. The applicant later stated that his wife was not attending Luke Church;
i)in terms of his religious activities in China, he mostly gathered at home or at friends’ homes with members of the congregation from Luke Church, also attending Mass at that church every week;
j)following the incident of June 2004, he was held for twelve hours and given a warning;
k)with respect to the incident of 2 April 2005, he was released from detention after forty-eight hours. During detention he was punched. He had refused to admit that the gathering was for Mass and said that it was just to commemorate the Pope’s death;
l)with respect to the incident of 29 July 2007, he escaped by jumping from the window. His wife had told him that everybody, including herself, were taken by the PSB and given a warning;
m)
apart from the incidents of June 2004, 2 April 2005 and
29 July 2007, he had had no other contact with the police in China and no other problems as a Christian;
n)he did not know if the Luke Church was registered or not;
o)sometimes the police came to look for him; and
p)he had heard that his father had been diagnosed with cancer two days before the Tribunal hearing and for that reason his oral evidence had been “a bit messed up”.
On 6 July 2009 the Tribunal received a written statement correcting two responses which the applicant had given at the Tribunal hearing, as follows:
a)from August 2006 to July 2007 he had moved to Gao Xiang in Fuqing city; and
b)on 22 [sic] July 2007 the police had come to arrest him when he was attending Mass at the home of one of his church friends. With the help of other members of the church he escaped arrest.
On 11 August 2009 the Tribunal sent the applicant a s.424A notice inviting him to comment on or respond to the following information which the Tribunal considered would be the reason or part of the reason for affirming the Minister’s decision:
a)in his primary application he did not refer to any periods of detention in China nor did he refer to any July 2007 incident, however, he told the Tribunal that he was detained by police on two occasions and escaped a police raid in July 2007;
b)he told the first Tribunal that he was held for twenty-four hours following the June 2004 raid but then told the second Tribunal that he was held for twelve hours having originally said in this written statement to the Minister’s department that he had only been “called on” by the police, interviewed and warned;
c)with respect to the April 2005 incident, he stated in his visa application that he avoided being detained but later told the Tribunal in a statement dated 1 October 2007 that he was in fact detained for forty-eight hours, tortured and interrogated; and
d)although in his protection visa application he gave a Dacuo address for the period 1997 to June 2006 and a Fuqing address for the period August 2006 to July 2007, in his written statement to the Minister’s department he did not refer to moving houses to avoid persecution. He initially stated to the Tribunal as constituted on the second occasion that he lived (only) in Dacuo village prior to departing for Australia, denying that he had moved address. He later stated that he had indeed moved to avoid persecution. The letter he then submitted from Pastor Chun dated 3 October 2007 stated the applicant’s address as Dacuo village.
On 25 August 2009 the Tribunal received the applicant’s response to its s.424A notice. The applicant said:
a)his visa application was prepared by someone to whom he had briefly told what had happened to him in China. The applicant was not sure about what information had been put in the application and it appeared that the written statement did not reflect completely what he had experienced in China and contained incorrect information too;
b)the applicant’s ability to give evidence at the second Tribunal hearing was affected by the news of his father’s illness;
c)he was held for twenty-four hours in June 2004. The answer that he gave at the second Tribunal hearing was also wrong because he was affected by the news of his father’s illness; and
d)the letter from Pastor Chun gave the applicant’s address in Dacuo village because that was the applicant’s initial household registration address commonly known by his friends and church members.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal had regard to evidence from other sources about the situation of members of unregistered churches in Fujian and noted that the applicant’s claimed experiences of being targeted during private gatherings and in domestic settings was significantly at odds with that evidence. These sources indicated, amongst other things, that Christians in Fujian province enjoyed one of the most liberal policies on religious freedom in China;
b)the Tribunal noted the applicant’s claims that he was distracted because of his father’s illness and that gaps in the initial statement to the department were the fault of the person who wrote down what he had said. However, the Tribunal did not consider that these could reasonably account for all the vague and inconsistent evidence he gave, particularly where he gave relatively detailed evidence on certain points from which he subsequently resiled;
c)his statement to the department was reasonably detailed yet contained no mention of either period of detention or his escape from the police in July 2007. In the Tribunal’s view, in a situation where a person is describing events to be written down, it is reasonable to expect that crucial events would most likely be mentioned while less significant details might be omitted;
d)the applicant’s evidence about the three incidents in which he was targeted by the police varied on key points:
i)regarding the incident in June 2004, in his statement to the Minister’s department he claimed that he was with other Catholics at his home when police broke in. He claimed that, in the following week, he was “called on” by the police, interviewed and warned. However, at the first Tribunal hearing he stated that the police detained him for twenty-four hours while at the second Tribunal hearing he said that he was held for twelve hours. He subsequently indicated in writing that he meant twenty-four hours but did not say so because of his concern for his father. The Tribunal noted that, even allowing for that concern, there was no reference to his detention in what was otherwise a fairly detailed paragraph in his visa application. The Tribunal did not accept that the applicant had been detained in 2004;
ii)if he had been detained and tortured for forty-eight hours in April 2005 as claimed, the applicant would have referred to this event in his statement to the department. The Tribunal did not accept that this incident had occurred;
iii)the applicant did not mention the raid on his house in late July 2007 in which he was purportedly the main target and which he described as being “the most unforgettable experience”. In the Tribunal’s view, and noting that the applicant’s statement to the department was written fifteen days after the raid was said to have occurred, this incident would surely have been uppermost in his mind when he described his problems to the person who wrote down his claims. The Tribunal did not accept that this incident had occurred;
e)the Tribunal did not accept that in 2006 the applicant was forced to move house in order to avoid persecution, noting that:
i)he was unable to tell the Tribunal what persecution he was suffering that year or how moving just ten kilometres from his previous home might enable him to avoid harm;
ii)at the second Tribunal hearing he said that he had resided at a single address in China from 1997 until his departure and denied having moved to a different address in 2006; and
iii)he initially stated that his family were still residing at the original address but later claimed that they were living at the new address;
f)he was vague as to whether Luke Church, of which he claimed to have been a member for some three years, was or was not a government registered church. The Tribunal found it highly illogical and implausible that he would not have established this fact given that he was primarily mixing with “underground” Christians and gave evidence that he “did not like the government approved churches”;
g)the Tribunal did not consider plausible the applicant’s claim that the police often went to Luke Church and tried to take people away, noting the independent evidence which indicated that the authorities could readily have closed the church had they been sufficiently motivated to do so. The Tribunal was therefore satisfied that the church was a state-approved one;
h)for these reasons, the Tribunal did not accept that the applicant was subjected to persecutory treatment by the authorities in China because of his religious beliefs or activities; and
i)the Tribunal accepted that since his arrival in Australia the applicant had been a member of a Catholic congregation in Sydney. Having regard to independent evidence that the Chinese authorities allow Christian worship in state-approved churches, the Tribunal was satisfied that if the applicant were to return to China he could continue to participate in religious activities at his previous church.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The RRT’s decision was affected by jurisdictional error as it failed to invite me to provide supporting documents.
(2)The RRT breached its obligations under s.424A of the Act as it failed to invite me to comment on information.
In an affidavit sworn or affirmed on 2 October 2009, the applicant stated the following:
The RRT failed to invite me to provide evidence of my father’s illness, which affected my capacity to give evidence before the Tribunal.
In light of the applicant’s oral submissions at the hearing in these proceedings, I take this to be particularisation of the first allegation in the application.
Failure to invite provision of supporting documents
The applicant submitted that the Tribunal failed to ask him to provide a medical certificate which demonstrated that his father was ill.
The implication contained in this allegation is that the Tribunal had some inquisitorial function. However, as was said in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123:
It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. … The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under
s 412 of the Act. (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at 1127 [18])
The Tribunal conducting an inquisitorial hearing of the sort referred to in SZIAI’s case is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at 451 [58], Gleeson CJ agreeing at 438 [1]. It is for the applicant to advance whatever evidence or arguments he considers relevant to support his contention that he has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at 576 [187], Gaudron and Kirby JJ agreeing at 546 [90] and 584 [212] respectively.
Consequently, the Tribunal had no obligation to act in the way alleged by the applicant. While it had a discretion under s.424 of the Act to make enquiries, the applicant has not demonstrated that the Tribunal’s failure to exercise that discretion amounted to a failure to discharge its statutory duty of review, in the sense discussed in SZIAI’s case at 1129 [25]-[26].
But in any event, the Tribunal was willing to accept, for the purposes of argument, that the applicant’s father did have colon cancer and that this had affected the applicant’s evidence at the second Tribunal hearing. For this reason, it invited the applicant to listen to a recording of the hearing and either to request a further hearing or make written submissions: para.69. The Tribunal acknowledged that it had received the statement from the applicant providing responses to two questions to which he did not consider he had given “correct answers” at the second Tribunal hearing because of his difficulty in concentrating on that day.
At para.93 of its decision and notwithstanding the applicant’s claims to have been distracted because of his father’s illness, the Tribunal concluded that this could not account for all of the vague and inconsistent evidence which the applicant had given. Nor did it account for his inconsistent allegations concerning where he lived in the period prior to his departure for Australia. The point to be made in relation to these conclusions is that, even accepting the existence of the applicant’s father’s illness, the Tribunal did not accept that the problems which it identified in the applicant’s versions of events could be explained by distress and distraction caused by the applicant’s alleged concern for his father. This was particularly so in circumstances where the applicant had been given an adequate opportunity to address such problems as were caused at the second Tribunal hearing by that concern.
For these reasons, the first allegation made by the applicant does not disclose a basis on which the Tribunal’s decision should be set aside.
Breach of s.424A
Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
The applicant has not identified what information he says should have been notified to him pursuant to s.424A of the Act. But in any event, the evidence relied upon by the Tribunal in reaching its decision was information which the applicant provided in writing to the Minister’s department, information which the applicant supplied to the Tribunal for the purposes of his review, whether in connection with the first or the second hearings, and independent country information. By virtue of s.424A(3), none of that information was required by s.424A(1) to be notified to the applicant.
Consequently, this ground does not show jurisdictional error on the Tribunal’s part.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 16 April 2010
5
1